Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-03
THE WRIT REFUSED.
Continued from First Page.

and that decision has been steadily ad-
hered to since then, numerous cases bear-
ing out the above assertion. Ii was con-
tended, however, in argument that though
the first ten amendments were adopted as
limitation on the federal power yet so
far as they secure the fundamental rights
according to the common law of man,
they make them the privilege and immun-
tiles of man as s citizen OF the United
States and cannot now be abridged
by state under the Fourteenth amend
ment. In other words, while the ten
amendments as limitations on power
Only apply to the Federal government
and not to states, yet, in so far as they
declare or recognize the rights of per-
sons, these rights are theirs as citizens Of
the United States, and the Fourteenth
amendment as to such rights limits the
state power as the ten Amendments had
limited the Federal power. 1t is also
centen6ed that the provision OF
the Fourteenth amendment which
declares that no state shall
deprive any person of life, liberty or
Or Jperty without due process of law, i'm
plies that every person charged with 8
crime in q state shall be entitled to trial
NY GIL lnpo4tlo1 lA1yt oAo CAA0l4 AS1 W
compelled to testify against himself. The
statute of the state as construed by
the court depriVes the petitioners
Of trial by an impartial jury, and
2, that Spies was compelled to tes-
tify against himself. Before con-
sidering whether the constitution of
the United States has effect, which is
claimed, it is proper to Inquire whether
the federal questions relied CT are part
OF this record. One statute to which OBJ
lection is made was approved March ~,
1874, and has been in force since July l
of that yesr. The complaint is that the
trial court acting under this statute
and in accordance with its requirements
compelled the petitioners against their
will to submit to a trial by jury that
was not impartial snd thus deprived them
of one Of the fundamental rights which
they had as citizens Of the United States
under the national constitution, and If
the sen ,ence of the court is car
ried into execution they will be deprived
of their lives without due process of law.
LII HoYt vs. Utah 100 U. S 439, it was
decided by this court that when cha!-
lenge by defendant in criminal case to
Juror for bias, actual or implied, is
disallowed and the juror is
thereupon peremptorily challenged
by the defendant and excused,
and sn impartial and competent
Juror is obtained in his place no injury is
Done the defendant, if until the jury is
finished he has other peremptory cnal-
Ienges which he can use; and so, in Hays
VS. Missouri [l2O U. S., II it was said
The right to challenge is the right to re-
iect-not to select Juror. If from those
who remain an impartial jury is obtained,
the constitutional right Of the accused is
msintained.' or the correctness of
these rulings we entertain no
doubt. We are therefore confined
il 5his case to the ruling on the challenge
10 Jurors who actually sat at the trial. OF
these there were but two, Theodore Den
ker, the third Juror who Was sworn, and
A. L. Sanford, the last, who was called
and sworn after all peremptory challenges
of the defendants had been exhausted. At
the trial the court construed the statute
that although a juror called as jury
man may have formed an opinion
based upon rumor or upon newspaper
statement, but has expressed no opinion
as to the truth of the newspaper state
ment, he is still qualified as juror if he
states that he can fairly and impartially
render verdict thereon in accordance
with the law and the evidence and the
court shall be satisfied Of the truth OF
such statement. It is not test ques-
ton whether the juror will have the
opinion which he has formed from the
newspaper changed by evidence, but
whether his verdict will be based only
upon the account which may here be given
BY the witnesses under oath? Inter
preted in this way the statute is now ma
terially different from that of the terri
tory Of Utah, which we had under con-
sideration in Hoyt VS.. Utah supra, and TO
which we then gsve effect. AS that WAS
territorial statute, passed by q terri
torial legislature, for the government of
territory over which the United
States had exclusive jurisdiction
it came directly within the scope of article
SIX of the amendments which guarantee
to Hoyt & trial by an impartial jury.
Webster VS.. Reid, IL Howard, 437 459
No che ct that time suggested doubt or
the constitutionality Of the statute, and
it was regarded both in the territorial
courts 81 d here as furni hipg proper
rule TO be observed by the territorial
court in impannelIDg an impartial jury in
q criminal case. A similar statute was
enacted in New York May 8, 1872. The
constitutionality Of the Statute OF New
York was sustained by the Court Of APP
peals of that state, and it has been acted
upon without objection ever since SO far
as we hrge been able to discover. No
doubt hiss ever been entertained
in Michigan and Nebraska, of the consti-
nationality OF the statutes of those states
respectively, but they have always been
treated by their Supreme courts as valid,
both under the constitution of the United
States and under that Of the state. In
deed, the rule of the statute of Illinois IS
it was construed by the trial court, ia not
materially different from that which has
been adopted by the courts of many Of
the states without legislative actions.
Without pursuing this subject further, it
is sufficient to say that we agree with the
Supreme court of Illinois in the opinion
that the statute on it's face, as construed
by The trial court, is not repugueDt 10
section Q of article of the constitu-
ton Of the state, which guarantees to
the accused party in every criminal
prosecution a speedy trial by an impartial
larry in the district in which the offer az